Technology Complicates NSA Debate

News Analysis: Lawmakers and legal scholars are grappling with advances in technology as they attempt to address President Bush's stated justification for authorizing the National Security Agency to eavesdrop.

Do contemporary advances in technology entitle the president to ignore federal laws if he believes they might get in the government's way in time of war?

That is the underlying question that lawmakers and legal scholars are grappling with as they attempt to address President Bush's stated justification for authorizing the National Security Agency to eavesdrop on people in the United States without first obtaining a court order.

Those who say the president acted illegally argue that spying on Americans in the United States without a warrant violates the Foreign Intelligence Surveillance Act of 1978, which governs the way that electronic surveillance and domestic wire interception can be conducted.

Those who say the president acted legally argue that FISA is trumped by the inherent executive powers under Article II of the Constitution combined with Congress' passage of the Authorization for the Use of Military Force on Sept. 14, 2001.

According to many of the NSA program's defenders, the battlefield in the war on terror includes the United States, where contemporary technologies, such as cell phones and the Internet, enable the enemy to move so fast that the government doesn't have time to comply with the warrant mandates under FISA.

However, the complications for law enforcement caused by rapidly evolving communications technologies entered into the debate on Capitol Hill nearly two decades ago.

With the growing popularity of wireless services in the early 1990s, the FBI sought to expand the amount of information it could collect from wiretaps.

E-mail, and then VOIP (voice over IP), created new ways for people to communicate outside of the public switched telephone network, where surveillance was customarily conducted within legal restraints.